Opinion
No. 33286.
June 13, 1938. Suggestion of Error Overruled July 21, 1938.
1. LANDLORD AND TENANT.
As respects action for injuries from defect in rented building, landlord is not charged with duty of keeping leased building in repair during period of lease, but such duty rests on tenant, and no liability exists on part of landlord, as against tenant.
2. LANDLORD AND TENANT.
In pedestrian's action against landlords for injuries sustained when timber from bottom of window sill fell from rented premises, under evidence that cleats used to prevent sill from falling were removed, unknown to landlords, at unknown time and by unknown person, and that wooden pegs in window frame were rotten, but that such fact could not be ascertained by reasonable inspection, "res ipsa loquitur" doctrine was inapplicable.
3. LANDLORD AND TENANT.
In pedestrian's action against landlords for injuries sustained when timber from bottom of window sill fell from rented premises, evidence that cleats used to prevent sill from falling were removed, unknown to landlords, at unknown time and by unknown person, and that wooden pegs in window frame were rotten, but that such fact could not be ascertained by reasonable inspection, required directed verdict for landlords.
APPEAL from the circuit court of Monroe county; HON. THOS. H. JOHNSTON, Judge.
Paine Paine and M.C. Young, all of Aberdeen, for appellants.
The law in the State of Mississippi is clear that the owner or landlord of a building is not liable for injury to strangers, due to defects in the premises in possession of a tenant unless the landlord assumed or retained this duty by an agreement with the tenant. And the duty rests on the lessee or tenant to make repairs where there is no express covenant by the lessee or landlord to repair.
1 Thompson's Commentaries on Law of Negligence 2d, secs. 1154, 1164.
In the following cases the courts hold that no duty rested on the landlord, who had leased property to a tenant, to inspect the building and keep the same in repair.
Hopman v. Reinhardt, 164 N.Y. Supp. 676; Rice v. White, 239 S.W. 141; 16 R.C.L., Landlord and Tenant, sec. 584, page 1063.
The appellee in his argument below and we presume in his argument before this court attempted to avoid the force of this law by arguing that in this particular case the landlord did make an inspection of the building for the purpose of seeing whether any repairs were necessary. But the concluding part of Section 585 of 16 Ruling Case Law, page 1065, is a complete answer to this argument, from which we quote as follows: "The landlord must, however, in order to be liable, have bound himself to repair, and a mere reservation of the right to enter and inspect and make such repairs as he may see fit is not deemed the equivalent of a covenant to repair. Nor will mere custom of the lessor to make repairs, without any agreement, suffice to render him liable."
The above general statements of the law are valid and accepted as the law in the State of Mississippi as appears from the following citations:
Jones v. Millsaps, 71 Miss. 10; Amusement Co. v. Rothenberg, 159 Miss. 800; Rich v. Swalm, 161 Miss. 505; Causey v. Norwood, 170 Miss. 874.
We next insist that even though the court should hold that the first proposition of law presented by us is inapplicable, yet we say that if there was any duty resting upon the appellants in this case to make repairs it was only such duty as to use reasonable care in the discovery of defects. The appellants must be shown to have notice of the defects existing in the window sash, or by the exercise of reasonable care appellants would have known of such defects.
16 R.C.L. 1042, sec. 561.
The appellants were not insurers, and were not required to use more care than a prudent man who was not an expert in mechanics or construction might be reasonably called upon to exercise.
Knies v. Lang, 57 A.L.R. 1022; 9 Am. Jur. 224; 2 Restatement of Law, Torts, sec. 365 d.
To uphold the verdict in this case under the facts would be tantamount to requiring appellant to have used extraordinary care and vigilance to have discovered the latent defects, to-wit, the wooden pins which had rotted in the lower rail of the window sash. This requirement is more than the law imposes on the owners of the buildings, we insist.
Odell v. Solomon, 99 N.Y. 635; Daniel v. Jackson Infirmary, 173 Miss. 832.
Leftwich Tubb and Jesse M. Coleman, all of Aberdeen, for appellee.
A traveler using the street has the same right to enjoy such use undisturbed as if he were the owner in fee simple.
Shipley v. Fifty Associates, 101 Mass. 251, 3 Am. Rep. 346; Scott v. Hart, 128 Miss. 353, 91 So. 17; 44 C.J., page 1026, sec. 3867; 13 R.C.L., page 251, sec. 208.
The owner of property must so use it as not to injure others.
9 Am. Jur., page 222, sec. 28, and page 223, sec. 29; Murray v. McShane, 52 Md. 217, 36 Am. Rep. 367.
The owner of a building abutting on a street is under the legal obligation to take reasonable care that it (or parts of it) shall not fall and injure persons lawfully thereon.
45 C.J., page 861, sec. 286, and page 859, sec. 282; Sinkovitz v. Peters Land Co., 5 Ga. App. 788, 64 S.E. 93; Hannen v. Pence, 40 Minn. 127, 12 Am. St. Rep. 717; Soriero v. Penn. Railroad Co., 86 N.J.L. 642, 92 A. 604, L.R.A. 1915C 710; Crow v. Colson, 123 Kan. 702, 256 P. 971, 53 A.L.R. 457; Steppe v. Alter, 48 La. App. 363, 55 A.S.R. 281; Smethurst v. Congregational Church, 148 Mass. 261, 12 A.S.R. 550; Shipley v. Fifty Associates, 106 Mass. 194, 8 A.R. 318; Murray v. McShane, 52 Md. 217, 36 Am. Rep. 367; Waterhouse v. Schlitz, 12 S.D. 397, 81 N.W. 725, 48 L.R.A. 157; St. Louis, I.R. S. Co. v. Hopkins, 54 Ark. 209, 15 S.W. 610, 12 L.R.A. 189; Detzur v. Stroh Brewing Co., 119 Mich. 282, 44 L.R.A. 500, 77 N.W. 948; Ruocco v. United Advertising Corp., 98 Conn. 241, 119 A. 48, 30 A.L.R. 1237.
The doctrine of res ipsa loquitur applies to the case at bar.
Waddle v. Sutherland, 156 Miss. 540, 126 So. 201; 20 R.C.L. 187, sec. 156; Penney v. Evans, 172 Miss. 900, 160 So. 779; Railway Co. v. Groome, 97 Miss. 201, 52 So. 703; 20 R.C.L. 78, sec. 69; Feeney v. N.Y. Waist House, 105 Conn. 647, 136 A. 554, 50 A.L.R. 1539; DeGlopper v. Nashville R. . L. Co., 123 Tenn. 633, 134 S.W. 609, 33 L.R.A. (N.S.) 913; 45 C.J. 1201, note 21; Cincinnati Traction Co. v. Holzenkamp, 17 Ohio St. 379, 113 A.S.R. 980, 78 N.E. 980, 113 A.S.R. 986, note; Carroll v. Chicago B. N.R. Co., 99 Wis. 399, 67 A.S.R. 872; Stair v. Kane, 156 Fed. 100; Waller v. Ross, 100 Minn. 7, 110 N.W. 252, 12 L.R.A. (N.S.) 721, note; St. Louis, I.M. S.R. Co. v. Hopkins, 54 Ark. 209, 15 S.W. 610, 12 L.R.A. 189; Furkovich v. Bingham Coal Lbr. Co., 45 Utah 89, 143 P. 121, L.R.A. 1915B 426; Leighton v. Deon, 102 A. 565, L.R.A. 1918B 922, 43 L.R.A. (N.S.) 594, 595, note; Potter v. Rorabough-Wiley D.G. Co., 112 P. 613, 32 L.R.A. (N.S.) 45; McCrorey v. Garrett, 109 Va. 645, 64 S.E. 978, 24 L.R.A. (N.S.) 139, note; Anderson v. McCarthy D.G. Co., 49 Wn. 398, 95 P. 325, 126 A.S.R. 870; Lyttle v. Denney, 222 Pa. 395,
71 A. 841, 128 A.S.R. 814; Griffen v. Manice, 166 N.Y. 188, 59 N.E. 925, 82 A.S.R. 630.
When the doctrine of res ipsa loquitur is applicable, the case must be submitted to the jury; the doctrine may never become the ground of a directed verdict.
45 C.J. 1223, sec. 784; Sweeney v. Irving, 228 U.S. 233, 33 Sup. Ct. 416, 57 L.Ed. 815, Ann. Cas. 1914D 905; Page v. Camp Mfg. Co., 180 N.C. 330, 104 S.E. 667; 45 C.J. 1224; Hughes v. Atl. City S.R. Co., 85 N.J.L. 212, 89 A. 769, L.R.A. 1916A 927; Ridge v. Norfolk S.R. Co., 167 N.C. 510, 83 S.E. 762, L.R.A. 1917E 215; Kohner v. Capital Traction Co., 62 L.R.A. 875; Penney v. Evans, 172 Miss. 900, 160 So. 779; A. V.R. Co. v. Groome, 97 Miss. 201, 52 So. 703; Paducah Traction Co. v. Baker, 130 Ky. 360, 113 S.W. 449, 18 L.R.A. (N.S.) 1185; Turner v. So. Power Co., 154 N.C. 131, 69 S.E. 767, 32 L.R.A. (N.S.) 848; Boyd v. Portland Gen. Elec. Co., 40 Or. 126, 57 L.R.A. 619, 66 P. 576; Kleinman v. Banner Laundry Co., 150 Minn. 515, 186 N.W. 123, 23 A.L.R. 479; Riggsby v. Tritton, 143 Va. 903, 129 S.E. 493, 45 A.L.R. 280; Keithley v. Hettinger, 133 Minn. 36, 157 N.W. 897, Ann. Cas. 1918D 376.
Although the landlord may be under no duty to repair in the absence of an express covenant so to do, if he does make repairs he is liable for want of due care in making same.
Green v. Long, 152 Miss. 117, 118 So. 705; Horton v. Early, 39 Okla. 99, 134 P. 436, 47 L.R.A. (N.S.) 314, Ann. Cas. 1915D 825; Ruff Drug Co. v. Western Iowa Co., 191 Iowa 1035, 181 N.W. 408, 15 A.L.R. 962, note, 971.
The owner of property is liable in cases of injury, if he leases premises in a dangerous condition.
Restatement Law of Torts, sec. 379, pages 1013, 1015 and 1016; Standard Oil Co. v. Decell, 175 Miss. 251, 166 So. 379; 16 R.C.L. 1076, sec. 594; Hannen v. Pence, 40 Minn. 127, 12 Am. St. Rep. 717.
The building or structure was a nuisance, and the owner or landlord is liable for injuries resulting therefrom although he may have leased it with a covenant to repair.
Shearman Redfield on Negligence, sec. 347; Mitchell v. Brady, 124 Ky. 411, 99 S.W. 266, 13 L.R.A. (N.S.) 751; Howard v. Central Amusement Co., 224 Mass. 344, 112 N.E. 857, 7 A.L.R. 195; Howard v. Redden, 93 Conn. 604, 107 A. 509, 7 A.L.R. 198; Mullen v. St. John, 57 N.Y. 567, 14 Am. Rep. 530; Connolly v. Des Moines Invest. Co., 130 Iowa 633, 105 N.W. 400; Murray v. McShane, 52 Ind. 217, 36 Am. Rep. 367; Bannigon v. Woodbury, 158 Mich. 206, 133 A.S.R. 371, 122 N.W. 531; Pearson v. Ehrich, 148 App. Div. 680, 133 N.Y. Supp. 273; Waterhouse v. Schlitz, 16 S.D. 592; Thompson on Negligence (2 Ed.), sec. 1156, page 1039, secs. 1157, 1158, page 1030, sec. 1159, page 1041, and sec. 1213, page 1087.
Argued orally by M.C. Young and Tom F. Paine, for appellants, and by Frank Leftwich, for appellee.
The appellee, plaintiff in the court below, brought suit against the appellant, Julian T. Evans, and his wife, Maria H. Evans, for a personal injury alleged to have been sustained by her about noon on the 22nd day of August, 1936, as she was walking along the main business street of Aberdeen, Mississippi, known as East Commerce street, as was her right and privilege, and had reached a point in front of the place of business of the Evans Sales Company in a building owned by the defendants, when a piece of timber, part of the wooden frame of a window in the second story of said building, fell and struck her foot, causing her great pain and injury. It fell without warning, though the day was quiet, with no wind blowing. The sidewalk and street were filled with people and vehicles. The appellee avers that the timber fell as the result of faulty or improper construction, or through neglect on the part of the owner; that the window had become rotten, unsafe and dangerous to the public using the street below, — the most frequented street in Aberdeen. She avers that the piece of timber, in falling from the window in the second story, struck her foot with great force, breaking a bone, and injuring and bruising the muscles and flesh thereof, so that she was compelled to consult doctors, incurring expense and being disabled for a period of about six weeks, and suffering great pain and discomfort.
The cause of the accident was unexplained, except that the bottom part of a window sill in the upper story of the building, the framework of which was fastened together with wooden pegs, fell. These pegs had become rotten, but the window frame and sill were in sound condition. The wooden pegs were concealed within the framework, and could only have been examined by driving them out of the frame with a punch or some other instrument.
The upper story of the building in question was leased to another person by the owner, and there was no contract between the lessor and the lessee that the lessor would keep that part of the building, including the windows, in repair. The owner or lessor, in the fall previous to the accident in August, had employed a carpenter to examine the building, including the upper story, and to make repairs wherever necessary, with a view to renting it to a chain store. In inspecting the building the carpenter also inspected the window, which appeared to be sound and in good condition; but he did not drive out the pegs holding the frame together and inspect them. The window was bought in the course of trade from a dealer in such commodities; and there is nothing to show any knowledge on the part of the owner that the pegs were unsound, or that the window was unsafe. In the preceding fall, when the carpenter was making necessary repairs, as stated above, the owner had him to nail some cleats under the window sill, to prevent its falling, the window being raised and lowered by a cord and weight. The cleats had been removed by some person not disclosed by the evidence, nor was the time of their removal shown, nor that the owner had knowledge of the removal thereof.
A witness for the plaintiff who testified concerning the falling of the piece of timber from the window more explicitly than any other, said: "We were walking by Evans Sales Co. and I heard a noise, heard something pop and I looked up and saw the bottom part of the top window sash of the second story falling and I started to run and saw it was going to hit and I started to get her out of the way, but the stick hit her on the foot, and I looked up and saw the glass coming, but we got out of the way."
The carpenter who inspected the window after the accident said that the glass did not fall, being held in place by putty. There was no evidence besides that stated above to show why the window sill fell. When the plaintiff rested the case the defendant made a motion to strike out the evidence and requested a peremptory instruction, which was overruled. The owner then testified to the leasing of the upper story of the building to a lessee with whom there was no agreement as to who would repair the building or keep it in condition. The plaintiff relied largely upon the doctrine of res ipsa loquitur, and it was relied upon to sustain the verdict for $1,000.00 against the owner. The lessee was not made a party to the suit.
The rule is well settled in Mississippi that the owner of a building leased to another is not charged with the duty of keeping the building in repair during the period of the lease; that the duty rests upon the lessee to keep the building in the necessary repair, and certainly no liability exists on the part of the lessor, as against the lessee. The latter came into possession, and, although having control over the property, was not introduced as a witness by either party. It may be that the lessee removed the cleats, and that the frame had been disconnected by pulling on the sash to raise and lower the window, or for some other cause which might reasonably explain the condition of the window sill, or the pegs that held the sill in the frame.
We think the doctrine of res ipsa loquitur does not apply here, and there is no sufficient evidence to support a judgment against the owner. It was not shown that the owner or landlord had any knowledge of a defective condition of the window sill or pegs in the window frame; or that reasonable inspection would have disclosed such defect as was shown. On the contrary, the proof is to the effect that a reasonable inspection failed to disclose such defect; and we do not think the circumstances disclosed were sufficient to charge the owner with knowledge of the defective condition of the window. The doctrine of res ipsa loquitur does not apply to every unexplained situation — accidents may happen without that doctrine being applicable, which we think is the case here.
At the conclusion of the entire evidence the defendant moved the court to strike out the evidence and grant a peremptory instruction in his favor, which was overruled. We think this peremptory instruction should have been given. The judgment of the court below will, therefore, be reversed, and judgment rendered here for the appellant.
Reversed and judgment here.